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6. Indonesia This country report was written by the PT Kami Karya Nusantara in November 2001. 6.1 Consumer Protection Law regarding B2C 6.1.1 Legal Framework ■ Comprehensive Consumer’s Protection Law (1) Law on Consumers’ Protection Law No. 8 of 1999 on Consumers’ Protection was promulgated on April 20 1999, and has come into effect since April 20, 2000 (one year after the date of promulgation). The intention of applying the law is for the government and non-governmental organizations to have a strong legal foundation for consumer’s protection in order to make efforts to empower consumers by means of fostering and educating consumers, considering the low level of Indonesian consumers’ awareness of their rights due to their low education level. The law defines the consumer protection as every effort made to guarantee legal certainty aimed at providing protection to the consumers. It regulates various things regarding the rights/obligations of consumers, the rights/obligations and responsibilities of business actors, prohibited acts to business actors, prohibited provisions on setting forth of standard clause in offering goods and/or services, and settlement of disputes that appear between consumers and business actors, including administration sanctions and criminal sanctions to business actors for every violation acts against the law. On the other hand, to optimize the efforts made on consumers’ protection, the law obliges the government to set up a National Agency for Consumers’ Protection (BPKN = Badan Perlindungan Konsumen Nasional) and a Board for Settlement of Consumers’ Disputes (BPSK = Badan Penyelesaian Sengketa Konsumen). The law also admits the existence of Non-governmental Institution for Consumers’ Protection (LPKSM = Lembaga Perlindungan Konsumen Swadaya Masyarakat). Before the Consumers’ Protection Law was applied, there were already some laws whose substances provided the consumers’ protection. Therefore, the Law No. 8 of 1999 is the umbrella act to all of the existing regulations to protect consumers’ interest. However, consumers’ protection in the event of a business actor violating the rights over intellectual property is not regulated in this Consumers’ Protection Law, because this is already

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regulated in the Law No. 12 of 1997 on Copyrights, Law No. 14 of 2001 on Patent, Law No.15 of 2001 on Mark (Trade-mark and Service-mark), Law No. 30 of 2000 on Trade Secrets and Law No. 31 of 2000 on Industrial Design. The Consumers’ Protection in the environment sector is not regulated in the Law on Consumers’ Protection, but is regulated in the Law No. 23 of 1997 on Environmental Management regarding the obligations of everybody to maintain sustainability of the functions of the environment, and to prevent and overcome environmental pollution and damage. (i) Scopes and Definition

Consumers’ Protection in this law is covering the protection of consuming goods and/or services that are produced and/or traded by a business actor, and also promotions formed by a business actor in introducing their goods and/or services.

Consumer is defined as everybody using goods and/or services, which are available in the community, both for his own purpose, for the purpose of his family and other people as well as other living creatures, and which are not to be traded (Article 1– (2)). Therefore, the meaning of a consumer here, is the end consumer and not the in between consumer.

Good is defined as anything which is either tangible or otherwise, which is either movable or otherwise, or which can be either used up or otherwise, and which can be traded, used or utilized by consumers (Article 1-(4)).

Service is defined as any service in the form of a job or an achievement that is made available to the community in order to be utilized by consumers (Article 1-(5)).

Business Actor is defined as any individual or business company, either in the form of statutory body or otherwise, set up and domiciled or undertaking activities in the jurisdiction of the state of the Republic of Indonesia, both individually and jointly through agreements on the running of business activities in various economic areas (Article 1-(3)).

Promotion, defined as an activity of identifying or dissemination of information of particular goods and/or services to draw the consumers’ interest to purchase goods and/or services which will be and are being traded (Article 1-(6)).

(ii) Principles and Purposes

The principles on protecting the consumers in this law are benefit, justice, balance,

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security, consumers’ safety and legal certainty (Article 2).

The purpose of consumer protection in this law are (Article 3): a. Promoting the consciousness, capability and independence of consumers to

protect themselves; b. Raising the dignity and self-respect of consumers by means of averting the

negative excesses of the use of goods and/or services from them; c. Promoting the empowerment of consumers in choosing, determining and

demanding their rights as consumers; d. Creating a system of consumers’ protection which shall contain the element of

legal certainty and information transparency as well as an access to obtain information;

e. Nurturing the consciousness of business actors regarding the significance of consumers’ protection so that an honest and responsible attitude in doing business will be fostered;

f. Raising the quality of goods and/or services that will guarantee the sustainability of the production of goods and/or services and consumers’ health, comfort, security and safety.

(iii) Rights/Obligations of Consumers and Business Actor

The rights/obligations of consumers and business actor are regulated in detail in the consumers’ protection law. Considering this law is for protecting the consumers, it stresses more to the rights of consumers’ and the obligations of business actor. This does not mean less law protection to business actor, but the protection of business actor is already regulated in other related laws.

The right of consumers are (Article 4): a. The right to comfort, security and safety in consuming goods and/or services; b. The right of choosing goods and/or services and obtaining the said goods and/or

services in accordance with the exchange value and condition pledged; c. The right to correct, clear and honest information about the condition and

guarantee of the goods and/or services; d. The right that their opinions and complaints about goods and/or services used will

be listened to; e. The right of obtaining advocacy, protection, and an endeavor to properly settle

disputes over consumer’s protection; f. The right of obtaining consumers’ fostering and education; g. The right of being correctly, honestly and non-discriminatorily treated and served; h. The right of obtaining compensation and/or refund if the goods and/or services

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received do not conform to the agreement or are not as they should be; i. The rights regulated in other laws.

The obligations of a business actor are (Article 7): a. Having a good faith in conducting business activities; b. Providing correct, clear and honest information about the condition and guarantee

of goods and/or services, and also providing explanation on usage, repair and maintenance;

c. Treating or serving consumers correctly, honestly and non-discriminatorily; d. Guarantying the quality of the goods and/or services produced and/or traded on

the basis of the prevailing standard provisions on the quality of goods and/or services;

e. Providing an opportunity to consumers to test and/or try certain goods and/or services, and providing an assurance and/or guarantee for the goods produced and/or traded;

f. Giving compensation and/or refund for the losses caused by the use, application and utilization of goods and/or services traded;

g. Giving compensation an/or refund if the goods and/or services received or utilized are not up to the agreement.

The responsibilities of business actor responsibilities are (Article 19): a. Responsible to provide compensation on the damage, contamination, and/or losses

sustained by consumers as the effect in consuming the goods and/or services produced or traded (Article 19- (1)).

b. Responsible to supply spare parts and/or after sales services and fulfill the guarantee with what is agreed upon, for the business actor producing goods whose utilization will be continued within a period of at least one year (Article 25-(1))

(iv) National Agency for Consumers’ Protection (BPKN), Agency for Settlement of

Consumers’ Disputes (BPSK), and Non-governmental Institution for Consumers’ Protection (LPKSM) ��National Agency for Consumers’ Protection (BPKN) is defined as the agency,

which is established to assist the efforts of consumer protection. It is domiciled in the capital city and responsible directly to the President, also functioned to provide suggestions and considerations to the government for developing consumers’ protection system in Indonesia. If needed, BPKN can set up the representative offices in province’s capital city for assisting the implementation of its duty. Members of BPKN consist of the representatives of government, business actors, non-governmental institutions for consumer’s protection, academics, and experts.

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BPKN consist of a chairman, a vice chairman that both also holds the position as members, also minimum 15 (fifteen) and maximum 25 (twenty five) members that representing all elements. The members of BPKN are installed and discharged by the President based on the suggestion of the Minister of Industry and Trade, after consulting the House of People’s Representatives. The duty is for 3 years and may be reinstalled for one more period.

��Board for Settlement of Consumers’ Disputes (BPSK) is established by the government in regencies and municipalities (except DKI Jakarta) for out-of-court settlement of consumers’ disputes. It is formed in order to conduct an efficient, fast, cheap, and professional consumers’ dispute settlement. The members consist of representatives of the government, consumers and business actors. Members from each representative group are at least 3 (three) persons and maximum 5 (five) persons. The board is comprised of a chairman (concurrently member), a vice chairman (concurrently member), and members.

��Non-governmental Institute for Consumers’ Protection (LPKSM) is a non-governmental institution, which is registered and admitted by the government as an institution that focuses on consumers’ protection activities. The institution is established for increasing consumers’ participation in the efforts of consumers’ protection as collective responsibilities between the government and communities. The government should strongly admit the existence of every LPKSM as long as they have fulfilled the standard qualification, such as being registered and admitted, and also active in consumer protection sector. These LPKSM have an opportunity to play an active role in realizing consumers’ protection.

(v) Dispute Settlement ��The settlement of consumers’ disputes may be conducted through the court of law

or outside the court of law (such as arbitration, mediation, negotiation, and reconciliation) in the basis of choice voluntary made by the disputing parties (Article 45-(2)) without waive the criminal responsibility as regulated in the law (Article 45 (3)).

��Individual disadvantaged consumer may sue a business actor through the Board for Settlement of Consumers’ Disputes or through a judicial process within the public court (Article 45-(1)). While, A lawsuit filed by a group of consumers (consumers sharing a common interest), non-governmental institute for consumers’ protection (which has fulfilled the requirements) or the government (if the goods and/or services utilized inflict big material losses and/or claim many

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victims) can only be filed to the public court (Article 46-(2)).

(vi) Outline Chapter 1 : General Provisions (Article 1) Chapter 2 : Principles and Purposes (Article 2,3) Chapter 3 : Rights and Obligations (Article 4-7) Section 1: Rights and Obligations of Consumers (Article 4,5) Section 2: Rights and Obligations of Business Actors (Article 6,7) Chapter 4 : Prohibited Acts to Business Actors (Article 8-17) Chapter 5 : Provision on Setting Forth of Standard Clause (Article 18) Chapter 6 : Responsibilities of A Business Actor (Article 19-28) Chapter 7 : Fostering and Supervision (Article 29,30) Section 1: Fostering (Article 29) Section 2: Supervision (Article 30) Chapter 8 : National Agency for Consumers’ Protection (Article 31-43) Section 1: Name, Position, Functions and Tasks (Article 31-34) Section 2: Organizational Structure and Membership (Article 35-43) Chapter 9 : Non-governmental Institution for Consumers’ Protection (Article 44) Chapter 10: Dispute Settlement (Article 45–48) Section 1: General (Article 45,46) Section 2: Out-of-Court Dispute Settlement (Article 47) Section 3: Dispute Settlement through the Court (Article 48) Chapter 11: Board for Settlement of Consumers’ Disputes (Article 49-58) Chapter 12: Investigation (Article 59) Chapter 13: Sanction (Article 60-63) Section 1: Administrative Sanction (Article 60) Section 2: Criminal Sanction (Article 61-63) Chapter 14: Transitional Provision (Article 64) Chapter 15: Closing Provision (Article 65)

(vii) Discussion regarding B2C E-Commerce

Law No. 8 of 1999 on Consumer Protection which is applied in Indonesia at present time is not clearly regulated the business-to-consumer electronic commerce area. However, as explained in the elucidation of the law, the application of Consumer Protection Law is intended to anticipate the increase of the transaction flow of goods and/or services across the boundaries of the territory of a country, as the effect of the

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globalization and free trade, which are supported by the progress of telecommunication and informatics technology. Therefore, the provisions enacted in this law, basically have been designed to cover the field of B2C electronic commerce. On the other hand, this law is only restricting a business actor, which is established and domiciled, or undertaking activities in the jurisdiction of the state of the Republic of Indonesia. The problem is the meaning of “undertaking activities in the jurisdiction of the state of Republic of Indonesia area”. How about undertaking activities which physically not in the jurisdiction of the state of the Republic of Indonesia, but doing it virtually. For example selling and/or promoting product and/or service through internet. Are they also the business actors defined in this law? Regarding this matter, according to us (Survey Team) Indonesian Consumer Protection Law is not clearly regulating it, therefore the law is only applied to the “business actor” who is physically undertaking activities in the jurisdiction of the state of Republic of Indonesia, or in other words not, it can not be applied to the “business actor” who is physically undertaking activities outside Indonesia. Cross-border Transaction Similar to B2C e-commerce, Cross-border Transaction is also not clearly regulated in Consumer Protection Law in Indonesia.

■ Other Laws Concerning Consumers’ Protection (2) Law on Intellectual Property Rights As mentioned above, consumers’ protection in the event of a business actor violating the rights over intellectual property is separately regulated in the intellectual property rights related laws, namely, Law No. 12/1997 on Copyright, Law No. 14/2001 on Patent, Law No. 15/2001 on Mark, Law No. 30/2000 on Trade Secret and Law No. 31/2000 on Industrial Design. As an example, in the Law on Copyright article 43, it is stated that the copyright holders have the right to file a petition for compensation to the court against any party who violates the copyright and ask for the seizure of those copied goods, however, the seizure is not applied to the copied goods in someone’s hand who does not conduct the trading of those goods, and obtains the goods for himself. (3) Civil Code A consumer in the Civil Code is equal to a buyer in buying and selling, renter in renting, and debtor in crediting, etc. Provisions related to the consumers’ protection in the Civil

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Code (the Third Book about Contract) are: Chapter V: Buying and Selling Section 1 : General Provisions (Article 1457-1472) Section 2 : Obligations of a Seller (Article 1473-1512) Section 3 : Obligations of a Buyer (Article 1473-1512) Chapter VII: Renting Section 1 : General Provisions (Article 1548, 1549) Section 2 : General Provisions for House and Land Renting

(Article 1550-1580) Section 3 : Special Provisions for House and Furniture Renting

(Article 1581-1587) Section 4 : General Provisions for Land Renting (Article 1588-1600) Chapter XIII: Crediting Section 1 : General Provisions (Article 1548, 1549) Section 2 : Obligations of a Debtor (Article 1759-1762) Section 3 : Obligations of a Creditor (Article 1753, 1764) Section 4 : Provisions for Crediting with an Interest (Article 1765-1769) Section 5 : Provisions for a Fixed Interest (Article 1770-1773) Noted that according to a circular of the Supreme Court of the Republic of Indonesia No. 3 of 1963, the present Indonesian Civil Code is no longer considered as a law but only as guidance, therefore the judges allow to deviate from this civil code in passing judgment on the civil case. (4) Criminal Code Different with the Civil Code, the Indonesian Criminal Code that is valid at present time is a Law No. 1 of 1946. Provisions related to Consumers’ Protection Criminal Code are: Chapter VII: Crimes that cause a danger to the general security of either human or goods

(Article 187 - 206) Especially, Article 204 and 205, regarding crimes in distributing dangerous goods for the human’s health or life.

Chapter VII: Crimes against decency Especially, Article 282, regarding broadcasting or showing an article and/or picture against decency.

Chapter XXI: Mistakes that cause people’s death or injury (Article 359 - 361) Chapter XXV: Fraud (Article 378 - 395)

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6.1.2 Organizations

(1) Government Regulation No. 57 of 2001 on National Agency for Costumers’ Protection (effective from July 21, 2001)

a. The National Agency for Customers’ Protection is established in the framework of

developing efforts to protect consumers. b. The National Agency for Customers’ Protection is domiciled in the capital city of the

Republic of Indonesia and is responsible directly to the President. c. If needed, The National Agency for Customers’ Protection may set up a representative

office in the capital of a province to help the implementation of its tasks. d. The function of The National Agency for Customers’ Protection is to provide

suggestions and considerations to the government in an effort to develop consumers’ protection in Indonesia.

e. To perform a function mentioned above, The National Agency for Customers’ Protection has the following tasks: - Providing suggestions and recommendations to the government in the framework

of drawing up policies in consumers’ protection; - Undertaking researches, and studies on the prevailing in the area of consumers’

protection; - Undertaking researches on good and/or services concerning consumers’ safety; - Bolstering the development of non-governmental institution for consumers’

protection; - Disseminating information through the media about consumers’ protection and

popularizing an attitude of siding with consumers; - Receiving complaints about consumers’ protection from the community, non

governmental institution for consumers’ protection or business actors; - Undertaking surveys concerning the need of consumers.

f. The National Agency for Customers’ Protection may establish cooperation with international consumers’ organization.

Existing organization: None (under construction) (2) Government Regulation No. 58 of 2001 on Fostering and Supervision over the

Implementation of Costumers’ Protection (effective from July 21, 2001)

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a. The government is responsible for fostering the implementation of consumers’ protection that guarantee that the consumers and the business actors enjoy the rights and that the obligations of consumers and business actors are performed.

b. Fostering the implementation of consumers’ protection is undertaken by the Minister for Trade and Industry, and/or technically relevant minister, and must encompass the following efforts: - The realization of a business climate and the growth of healthy relationship

between business actors and consumers; - The development of non-governmental consumers’ protection institutions; - The increasing of both the quality of human resources and the quantity of

research and development activities in consumers’ protection field. c. Supervision over the implementation of consumers’ protection and the application of

the law is conducted by the government (the Minister for Trade and Industry, and/or technically relevant minister), the community, and the non-governmental institutions for consumers’ protection.

d. The supervision by the government is focused on the business actors in fulfilling the quality standard of goods and/or services, in labeling the standard clause, and in conducting the after sales services. This supervision is undertaken from processing, offering, promoting, advertising, and selling the goods and/or services.

e. The supervision by the community and non-governmental institutions for consumers’ protection is undertaken over goods and/or services distributed in the market.

f. Besides the method by conducting research, verification and/or survey on the suspected goods and/or services which do not fulfill the prevailing standards on the security, health, comfort, safety of consumers, the supervision may also be based upon an information from the community, either an individual consumer or the group of consumers.

g. The result of the supervision undertaken by the community and non-governmental institutions for consumers’ protection may be disseminated to the community and may be conveyed to the Minister of Trade and Industry and technically relevant minister.

h. If the result of the supervision undertaken by the community and non-governmental institutions for consumers’ protection turns out to deviate the prevailing laws and harm the consumers, the Minister for Trade and Industry and/or technically related minister shall take action pursuant to the prevailing laws.

Existing organization: ��Ministry of Trade and Industry, Directorate General for Domestic Trade, Directorate of

Consumers’ Protection

(3) Government Regulation No. 59 of 2001 on Non-governmental Institution for

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Costumers’ Protection (effective from July 21, 2001)

a. The non-governmental institution for consumers’ protection is a non-governmental

institution which is registered and recognized by the government and whose activities are handling of consumers’ protection.

b. The requirements to be recognized by the government as a non-governmental institutions for consumers’ protection are as follows: - Registered in municipal/regencies government, and - The activities are handling consumers’ protection as written on the articles of

institution. c. The tasks of non-governmental institutions for consumers’ protection encompass the

following activities: d. Disseminating information in the framework of enhancing awareness of the rights and

obligations and consumers’ prudence in using goods and/or services; e. Providing advice to consumers who need it; f. Cooperating with relevant government agencies in an efforts to realize consumers’

protection; g. Helping consumers in fighting for their rights, including receiving complaints or

grievances from consumers; h. Supervising, along with the government and community, the implementation of

consumers’ protection. Existing organization: ��Foundation of Indonesian Consumers Institute (YLKI)

http://www.ylki.org/

��Consumers’ Protection and Training Institution (LP2K)

http://www.consumersinternational.org/members/indonesia1.html/

��Foundation of Consumers’ Institute of South Sulawesi (YLK SULSEL)

http://www.lsm.or.id/ylksulsel/

6.1.3 Consistency between the OECD guideline and legal concept in the

country In particular view, there is a common perception. Some differences are:

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��There is no special guidelines apply to e-commerce.

��Protection to consumers cover all transactions for goods and/or services including promoting, provided information, marketing and business selling.

��Information about goods and/or services has to be explained and clearly mentioned on the product, but it is not clearly mentioned on the consumer protection law, what kind of information should be informed or provided by business actor before entering into a transaction with the consumer.

��In the Indonesian Consumer Protection Law, prohibited acts to business actors are emphasized more, instead of the acts that should be conducted by them.

��There are 5 basic principles in the implementation of consumers’ protection in Indonesia as mentioned on the Law No. 8 of 1999 Article 2, namely:

- The principle of benefit is aimed at ensuring that every effort in providing consumers’ must give the maximum benefit to the interest of consumers and business actors as a whole;

- The principle of justice is aimed at ensuring that the participation of the entire people can be realized to the maximum and give an opportunity to consumers and business actors to enjoy their rights and perform their obligations actively;

- The principle of balance is aimed at providing balance between the interests of consumers, business actors, and the government in the material and spiritual sense;

- The principle of security and safety of consumers is aimed at providing a guarantee of security and safety to consumes in using and utilization of goods and/or services consumed or used;

- The principle of legal certainty is aimed at ensuring that both business actors and consumers shall comply with the law and obtain justice in the provision of consumers’ protection, while the state shall guaranty legal certainty.

6.1.4 Choice of Law and Jurisdiction of the court (1) Civil Case It is assumed that disputing parties do not agree to choose a certain jurisdiction through Alternative Dispute Resolution or Arbitration, based on Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolution, then either the Indonesian party is a plaintiff or a defendant, the Indonesian jurisdiction shall be applied, as can be described as follows: According to the Code of Civil Procedure of the Old Netherlands Indies (called HIR =

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Herziene Indonesisch Reglement, Law No. 41 of 1941) and its supplement (called RV = Reglement op de Burgerlijke Rechtsvordering, Law No. 52 of 1847) which are still used in the Indonesian Court, the applied jurisdiction is regulated as follows: Case 1: Foreigner (plaintiff) X Indonesian (defendant)

(Jurisdiction: Indonesia) - HIR Article 118-(1):

If the defendant’s residence or real residence is clear, then the jurisdiction is that of the defendant’s residence or real residence. (Based on RV Article 99-(3)), “clear” here is always considered by Indonesian judge as “clear in the jurisdiction of the state of the Republic of Indonesia)

Case 2: Foreigner (plaintiff) X (Indonesian & Foreigner) (defendants) (Jurisdiction: Indonesia or other defendant’s jurisdiction) - HIR Article 118-(2):

If there are two or more defendants, the plaintiff has the right to choose the court of one of defendant’s domicile to submit the petition.

Case 3: Indonesian (plaintiff) X Foreigner (defendant) (Jurisdiction: Indonesia) - HIR Article 118-(3):

If the defendant’s residence is unknown, or real residence is unclear, or if the defendant is unknown, then the jurisdiction is that of the plaintiff’s residence.

- RV Article 99-(3) (following the Dutch RV Article 128-(3)): In case the defendant has no legal residence or no actual residence in Indonesia, the Indonesian judge will be regarded as internationally competent if the plaintiff has his residence in Indonesia.

- RV Article 100 (following the Dutch RV Article 127) The Indonesian judge will be regarded as internationally competent for the foreigner who has no known address in Indonesia and has entered into transactions with Indonesian citizens.

(2) Criminal Case According to the Code of Criminal Procedure of the Republic of Indonesia, the determination of jurisdiction in criminal case depends on the location of the related criminal act (principle of the “locus delicti”), i.e.:

- The location where the criminal act takes place, or - The location of weapon and or equipment used to carry out the act, or - The location of the effect and or consequence of the act.

If one out of the three types of location mentioned above is in the jurisdiction of the state of

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the Republic of Indonesia, then the Indonesian jurisdiction shall be applied.

Comment:

The Republic of Indonesia has not yet ratified the Convention of United Nations in Contracts for International Sale of Goods (UNCSIG) of 1980 and 1986.

6.1.5 Disclosure for Foreign Countries “Warta Konsumen” (monthly, in Indonesian Language) published by the Foundation of Indonesian Consumers Institute (YLKI) 6.2 Personal Information Protection Law in Public Sector regarding B2C 6.2.1 Legal Framework ■ Comprehensive Consumers’ Protection Law

At the moment, Indonesia has not had a comprehensive law on personal information protection.

■ Other Laws Concerning Personal Information Protection (1) The 1945 Constitution of The Republic of Indonesia In Chapter XA on Human Rights Article 28G-(1), it is stated that “every person is entitled to have protection for himself, his family, his dignity, and any belonging under his control as well as the sense of security, and protection from any fear to perform or not to perform a conduct which is perceived as a basic right”. This article is the law foundation for every Indonesian citizen to have law protection for his personal information. Thereby, all the acts and regulations under this law must accommodate this principle either explicitly or implicitly. (2) Law on Human Rights Law No. 39 of 1999 on Human Rights is the law foundation, which is the umbrella to all

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regulations on personal information protection either in private sector or public sector, including protection for national or international electronic communication. Human Rights in this law is defined as rights by birth possessed by any human as a creature of God The Almighty. He grants the rights and therefore they must be respected, upheld, and protected by the state, law, government and any other human to guard and protect human dignity. This Human Rights Law obliges any person in the jurisdiction of the Republic of Indonesia to abide by the international human rights regulations, conventions and laws that are accepted by the Republic of Indonesia (Article 67). Furthermore, this law explicitly grants protection for personal information through national or international electronic communication (telephone, the Internet etc) as stated in Article 32 that “freedom and secrecy in correspondence including communication through electronic media must not be violated except by a court order or other legal authority in accordance to the law”. As for the violation to these rights, every person is entitled to use any legal national means or international forum against such violation. This right is guaranteed by both of Indonesian law on human rights (Article 7-(1)) and the international convention on human rights, which is already ratified by the Republic of Indonesia (Article 7-(1)), whereby the enforcement is the government’s responsibility (Article 8). • Outline

Chapter 1 : General Provisions (Article 1) Chapter 2 : Basic Principles (Article 2 - 8) Chapter 3 : Basic Human Rights and Freedom (Article 9 - 66) Section 1 : The Right for Life (Article 9) Section 2 : The Right for Family Life and Procreation (Article 10) Section 3 : The Right for Self-Development (Article 11 - 16) Section 4 : The Right for Justice (Article 17 - 19) Section 5 : The Right for Personal Freedom (Article 20 - 27) Section 6 : The Right for Sense of Security (Article 28 - 35) Section 7 : The Right for Wealth (Article 36 - 42) Section 8 : The Political Right (Article 43, 44) Section 9 : The Women’s Rights (Article 45 - 51)

Section 10 : The Children’s Rights (Article 43 - 66) Chapter 4 : Basic Human Obligations (Article 67 - 70) Chapter 5 : Government’s Obligations and Responsibilities (Article 71 - 72) Chapter 6 : Restrictions and Prohibitions (Article 73 - 74) Chapter 7 : The National Commission for Human Rights (Article 75 - 99) Chapter 8 : Public Participation (Article 100 - 103) Chapter 9 : Human Rights Court (Article 104)

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Chapter 10 : Transitional Provisions (Article 105) Chapter 11 : Closing Provisions (Article 106)

(3) Law on Telecommunication Law No. 36 of 1999 on Telecommunication was promulgated on September 8 1999, and has come into effect since September 8, 2000. In this law, telecommunication is defined as any broadcast, transmission, sending and/or receiving of any information in the form signs, symbols, transcriptions, images, voices and sounds through wire, optical, radio or any other electro-magnetic systems (Article 1-(1)). The conduct of telecommunication must be based on the principles of mutual benefit, justice, fair distribution, law protection, security, partnership, ethics, and self-confidence (Article 2). This law obliges a Telecommunication Service Provider to protect information sent and/or received by its subscribers through a telecommunication network and/or telecommunication service that it provides unless the information is necessary for a criminal case court (Article 42-(2)). A Telecommunication Service Provider is any individual, cooperation, regional-government-owned company, state-owned company, private company, government institution and state defense/security institution which provide telecommunication service to satisfy the need to telecommunicate by means of a telecommunication network (Article 1-(7), 1-(8)). While, a customer is defined as any individual, legal body and government institution that use a telecommunication network and/or telecommunication service based on a contract (Article 1-(9)). • Outline

Chapter 1 : General Provisions (Article 1) Chapter 2 : Principles and Purposes (Article 2, 3) Chapter 3 : Fostering (Article 4 - 6) Chapter 4 : Implementation (Article 7 - 43) Section 1 : General (Article 7) Section 2 : Providers (Article 8, 9) Section 3 : Prohibition on Monopoly Practice (Article 10) Section 4 : Licensing (Article 11) Section 5 : Rights and Obligations of Provider and Public

(Article 12 - 22) Section 6 : Numbering (Article 23 - 24)

Section 7 : Interconnection and Implementation Fee (Article 25, 26)

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Section 8 : Tariff (Article 27, 28) Section 9 : Special Telecommunication (Article 29 - 31)

Section 10 : Telecommunication Equipment of Radio Frequency Spectrum and Satellite Orbit (Article 32 - 37)

Section 11 : Telecommunication Security (Article 38 - 43) Chapter 5 : Investigation (Article 44) Chapter 6 : Administrative Sanctions (Article 45, 46) Chapter 7 : Criminal Provisions (Article 47 - 59) Chapter 8 : Transitional Provisions (Article 60 - 62) Chapter 9 : Closing Provisions (Article 63, 64)

(4) Law on Banking

Law No. 7 of 1992 on Banking was promulgated on March 25, 1992, and since then has come into effect. Through Law No. 10 of 1998 enacted on November 10, 1998, revision made to some articles in this Law on Banking by adding some provisions regarding Islamic Bank.

This law also prohibits a bank from giving information recorded by the bank on financial conditions or other matters of its customers, which by conventions in banking must be protected, except for tax purposes, criminal case courts, civil case courts between the bank and its customer and information exchange with other banks (Article 40-(1)). This provision also applies to other parties, which are affiliations of the bank (Article 40-(2)).

A bank is defined as a profit body that collects funds from the society in the form of saving, and distributes such funds back to the society in improving the living standard of the society (Article 1-(1)).

Bank secret is defined as any information related to financial or other conditions of the bank’s customers, which in banking conventions must be kept confidential (Article 1-(16)).

Parties which are affiliations of a bank (Article 1-(15)) are:

- Members of the board of commissioners or supervisors, the board of directors, bank officials or employees;

- Members of the management board, auditing board, directors, bank officials or employees, particularly for banks in the form of cooperative according to prevailing laws and regulations;

- Parties which provide their services to the bank, including consultants, legal consultants, public accountants, and appraisers;

- Parties, which according to the Central Bank of Indonesia involve in the bank

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management.

• Outline

Chapter 1 : General Provisions (Article 1) Chapter 2 : Principles, Functions and Purposes (Article 2 - 4) Chapter 3 : Types and Businesses of Banks (Article 5 - 15) Section 1 : Types of Banks (Article 5) Section 2 : Commercial Banks (Article 6 - 12) Section 3 : People Credit Bank (Article 13 - 15) Chapter 4 : Permits, Legal Form and Ownership (Article 16 - 28) Section 1 : Permits (Article 16 - 20) Section 2 : Legal Form (Article 21) Section 3 : Ownership (Article 22 - 28) Chapter 5 : Fostering and Supervision (Article 29 - 37) Chapter 6 : Board of Commissioners, Directors and Foreign Experts (Article 38, 39) Chapter 7 : Bank Secrets (Article 40 - 45) Chapter 8 : Criminal Provisions and Administrative Sanctions (Article 46 - 53) Chapter 9 : Transitional Provisions (Article 54 - 59) Chapter 10 : Closing Provisions (Article 60)

• Law on Central Bank of Indonesia

Law No. 23 of 1999 on Central Bank of Indonesia which was promulgated on and has come into effect since March 17 1999 also obliges the governor, the deputies of governor and all the employees of the Central Bank of Indonesia as well as other parties which are involved in duties of the bank to keep in confidence information and data of individuals obtained through a survey held by or for the Central Bank of Indonesia, and to keep in confidence individual data of banks which are clearing participants (Article 14). (5) Law on Stock Market Law No. 8 of 1995 on Stock Market was promulgated on November 10 1995 and has come into effect since January 1 1996. This law prohibits parties which conduct activities in stock market such as Effects Enterprises, Investment Advisors, Custodians etc including their affiliations, from revealing the name and/or personal information of their customers (Article 35-(b), unless is obliged to do otherwise according to valid regulations and acts (Article 47-(1)). Stock Market is any activity related to trading and offering securities to the public and any activities of public companies which have connections to the securities that they issue as

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well as institutions and professions related to the securities (Article 1-(13)). A Securities Company is a party, which conducts profitable activities as an Underwriter, Broker-Dealer and/or Investment Manager (Article 1-(21)). An Investment Advisor is a party, which gives advice to another party regarding selling or buying securities for service fees in return (Article 1-(14)). A Custodian is a party which provides services of storing securities and other properties related to securities along with other services including receiving dividends, interests and other rights; performs securities transactions; and represents its account holders (Article 1-(8)). (6) Law on Commodity Futures Trading Law No. 32 of 1997 on Commodity Futures Trading was promulgated on and has come into effect since December 5 1997. This law obliges parties conducting activities in Commodity Futures Trading, such as Futures Trading Broker, Futures Trading Advisor, Manager of Futures Trading Mutual Funds, etc., including parties which are their affiliations, to guarantee the confidentiality of data and information on customers, clients or participant of Futures Trading Mutual Funds, and prohibits such parties from revealing such data and information unless written consents are obtained from customers, clients or Futures Trading Mutual Funds, or the parties are obliged by valid regulations and acts to do otherwise (Article 55). Commodity Futures Trading is anything related to trading of commodities with postponed acceptance based on a Futures Contract and Option upon the Futures Contract (Article 1-(1)). A Futures Trading Broker is a profit body, which conducts activities in trading commodities based on a Futures Contract on behalf of its Customer by withdrawing an amount of money and/or certain share certificates as a margin to guarantee such a transaction (Article 1-(12)). A Futures Trading Advisor is a party, which gives advice to another party on trading of commodities based on a Futures Contract for fees in return (Article 1-(13)). A Manager of Futures Trading Mutual Funds is a party, which conduct activities related to collecting and managing funds from participant of Futures Mutual Funds in order to invest such funds in a Futures Contract (Article 1-(14)). (7) Law on Archives Law No. 7 of 1971 on Archives was promulgated on and has come into effect since May 18, 1971. The Law held the government responsible for securing archives (Article 4). According to this Law, archive is defined as documents written and received by state institutions, government agencies, private and/or individual agencies, in any forms, either singularly or in groups, to facilitate the implementation of government affairs and/or the life

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of the nation (Article 1). • Outline

Chapter 1 : General Provisions (Article 1 - 3) Chapter 2 : Government Tasks (Article 4 - 7) Chapter 3 : Archive Organization (Article 8) Chapter 4 : Archive Obligations (Article 9, 10) Chapter 5 : Criminal Provisions (Article 11) Chapter 6 : Closing Provisions (Article 12, 13)

(8) Law on Freedom to Obtain Information (Draft) (NOTE: The Law is for public sector.) This proposed law regulates the right of every member of the public to obtain information. The bill defines information as materials containing communicable components, facts, data or anything that is self-explanatory or through anything regulated in the forms of documents, files, reports, books, diagrams, maps, pictures, photos, film, visual, sound recording, recording by computer or other displayable methods (Article 1-(1)). The principles enclosed in this bill is that every information is open and accessible for every individual (Article 2-(1)), except for information that if provided to the public, it will probably endanger the state, business interests, or personal rights (Article 2-(2)) (9) Criminal Code The Criminal Code Article 322 on secrecy prohibits individual from revealing a secret, due to his previous or current job or position that obligates him to keep it secret. 6.2.2 Organizations The Center of National Archives http://www.pnri.go.id/ 6.2.3 Consistency between OECD guideline and legal concept in the country Indonesia has not had a comprehensive law on personal information protection.

6.2.4 Choice of Law and Jurisdiction of the Court

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Same as explanations in “6.1.4 Choice of Law and Jurisdiction of the court”. 6.2.5 Disclosure for Foreign Countries None. Even in Indonesian Language. 6.3 Web Site Trust Mark System Hitherto, Indonesia has not had a Web Site on Trust Mark System. However, there are two foreign companies that have initiated to socialize the use of this system, i.e.: VeriSign and E-trust. VeriSign is socialized through internet banking on Bank Central Asia (BCA) ( http://www.klikbca.com/ or https://ibank.klikbca.com/ ) and Bank Internasional Indonesia (BII) ( http://www.bankbii.com/ ). 6.4 Regulations on Domain Name 6.4.1 ccTLDs administration organization • Indonesia Network Information Center (ID-NIC)

http://www.idnic.net.id/ Scope: web.id, sch.id, go.id, war.net.id, ac.id, co.id, or.id, net.id, mil.id

• PT. DotCom Indonesia (Authorized Register Agent)

http://www.dotcomindonesia.com/ (in English)) http://www.namadomain.com/ or http://registercentre.com/ Scope: .com, .net, .org, .cc, .info, .museum, .biz

6.4.2 Regulations on Domain Name According to the prevailing laws in Indonesia, an internet domain name or trade name is a mark, and it can be a trade-mark, service-mark, or both of trade- and service-mark, which is in Mark Law called a collective mark. Therefore, the right for an internet domain name or trade name is not covered in copyrights, but in trade/service-mark rights. Law No. 6 of 1982 on Copyrights that has been amended with Law No. 7 of 1987 and Law No. 12 of 1997 defines Copyrights as special rights entitled to one creator or more, for any

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specific works or creation in the field of science, art and literature (Article 1). Article 11 stated that works (creation) whose creator holds copyrights, i.e.: books, computer programs, pamphlets, published papers and other written works; talks, lectures, speeches and other verbal works; scientific visual aids; songs or music produced with or without lyrics, and other voice recordings; drama, dance (choreography), pantomime; performing art; broadcast works; any form of fine arts such as painting, picture, carving, calligraphy, sculpture, collage, applied art such as handicraft; architecture; map; batik; photography; cinematography; translation, interpretation, adaptation, anthology, and other converted works. On the other hand, the Law No. 15 of 2001 on Mark which was promulgated on and has come into effect since August 1, 2001, defines Mark as signs in the form of pictures, names, words, alphabets, numbers, color arrangement, or a combination of them that has distinctive feature in goods or service trading (Article 1-(1)). Based on its function, there are three kinds of Mark, i.e.:

(i) Trade-mark is Mark used on goods by an individual or some individuals collectively, or statutory body, to distinguish it from other goods of the same kind (Article 1-(2)).

(ii) Service-mark is Mark used on service by an individual or some individuals collectively, or statutory body, to distinguish it from services of the same kind (Article 1-(3)).

(iii) Collective-mark is Mark used on goods and/or service of similar characteristics traded by some individuals or statutory body collectively, to distinguish it from goods and/or services of the same kind (Article 1-(4)).

From the definitions above (Article 1-(1)), it is clear that the internet domain name or trade name is a Mark according to Indonesian Law.

• What are the requirements for owners of Domain Name and or Trade Name to be entitled to Mark-rights protected by the Indonesian Law?

In the Law on Mark article 3, it is stated that Mark-rights are exclusive rights given by the state to the owner of Mark registered in the Mark Directory to use that Mark for himself for a certain period of time, or permit other parties to use it. Accordingly, the requirements for owners of domain name and or trade name to be entitled to Mark-rights protected by the Indonesian Law is that the domain name and or trade name must be registered in the Mark Directory through the Directorate General of Intellectual Property Right, Ministry of Justice and Human Rights, according to the procedure regulated in the Law on Mark and other

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existing regulations, by classifying the Domain Name and Trade Name to be registered as Trade-mark, Service-mark or Collective-mark. As long as a domain name and/or a trade name are unregistered in the Mark Directory, the right over it is unprotected by the law. Law on Mark restricts the Mark that can be registered by requiring the Mark to lack one of the following conditions: incompatible with existing regulations, religious morality, ethics, or public order; or lacking of distinctive feature; or already belonging to the public; or being an explanation or related to goods or service to be registered (Article 5). In addition, the request for Mark registration will be denied if the Mark: - bear similarities in part or on the whole with Mark for goods and/or service of the same

kind registered by other parties; or recognized as belonging to other parties for goods and/or service of the same or different kind under certain conditions; or similar in part or on the whole with renowned geographic indication; (Article 6-(1))

- is or resembles the name or photo of a famous person, or the name of statutory body owned by others; or imitates or resembles the name or acronym, flag, or symbol or emblem of a state or a national or international institution; imitates or resembles the official sign or seal or stamp used by the state or government. Exception for such Mark Registration is only made possible with written consent from rightful and/or authorized parties. (Article 6-(3))

• Can the owner of a Registered Mark file a lawsuit against other parties using similar

Mark as a domain name or a trade Name? Article 76 states that the owner of a Registered Mark can file a lawsuit against other parties who have no rights to use the similar Mark in part or on the whole for goods or services of the same kind. One of the conditions in this article is “for goods or services of the same kind”. Therefore, provided that the trading of goods or service of the domain name or trade name is “not of the same kind”, the owner of the Registered Mark cannot file a lawsuit. However, an exception is given for a well-known Mark Right, by relaxing a restriction on “for goods and or services of the same kind” to be “for similar and non-similar goods and or services” (Article 6-(2)). • In case of dispute, how is the settlement? To settle the dispute, a lawsuit can be filed to the Chairman of Commercial Court in the jurisdiction of the plaintiff’s residence (Article 80-(1)), and in case the plaintiff does not

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reside in Indonesia, the lawsuit can be filed to the Chairman of District Court of Central Jakarta (Article 80-(1)). In addition, the parties in dispute can also settle the dispute through Arbitration or Alternative Dispute Resolution (Article 84). • How can the owner of an internet domain name be entitled to the Mark-rights protected

by the Indonesian Law on Mark? Special regulations or provisions regarding this matter are required through a joint effort between the Directorate General of Intellectual Property Right, Ministry of Justice and Human Rights and Indonesia Network Information Center (ID-NIC), including other organization managing the domain name registration in Indonesia, such as PT. DotCom Indonesia) • Outline

Chapter 1 : General Provisions (Article 1) Chapter 2 : The Scope of Mark (Article 2 - 6) Section 1 : General (Article 2, 3) Section 2 : Mark that cannot be Registered or will be Denied

(Article 4 - 6) Chapter 3 : Request for Mark Registration (Article 7 - 17) Section 1 : Requirements and Procedure for the Request (Article 7 - 10) Section 2 : Request for Mark Registration with Priority Right

(Article 11, 12) Section 3 : Completeness Inquiry on Mark Registration Requirements

(Article 13 - 14) Section 4 : Reception Period for the Request for Mark Registration

(Article 15) Section 5 : Alteration and Withdrawal of the Request for Mark

Registration (Article 16 - 17) Chapter 4 : Mark Registration (Article 18 - 39) Section 1 : Substantial Assessment (Article 18 - 20) Section 2 : Request Announcement (Article 21 - 23) Section 3 : Objections and Rebuttals (Article 24 - 25) Section 4 : Reassessment (Article 26 - 27)

Section 5 : Protection Period of the Registered Mark (Article 28) Section 6 : Appeal (Article 29 - 32) Section 7 : The Appeal Commission on Mark (Article 32 - 34)

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Section 8 : Extension of Protection Period of the Registered Mark (Article 35 - 38)

Section 9 : Change of Name and/or Address of Registered Mark Holder (Article 39)

Chapter 5 : Transfer of Right on Registered Mark (Article 40 - 49) Section 1 : Transfer of Right (Article 40 - 42) Section 2 : Licensing (Article 43 - 49) Chapter 6 : Collective Mark (Article 50 - 55) Chapter 7 : Geographic Indication and Origin Indication (Article 56 - 60) Section 1 : Geographic Indication (Article 56 - 58) Section 2 : Origin Indication (Article 59 - 60) Chapter 8: Deletion and Cancellation of Mark Registration (Article 61 - 72) Section 1 : Deletion (Article 61 - 67) Section 2 : Cancellation (Article 68 - 72) Chapter 9: Mark Administration (Article 73, 74) Chapter 10 : Fee (Article 75) Chapter 11 : Dispute Settlement (Article 76 - 84) Section 1 : Lawsuit on Mark Violation (Article 76 - 79) Section 2 : Lawsuit Procedure in Commercial Court (Article 80, 81) Section 3 : Final Appeal (Article 82, 83) Section 4 : Alternative Dispute Resolution (Article 84) Chapter 12 : Provisional Verdict (Article 85 - 88) Chapter 13 : Investigation (Article 89) Chapter 14 : Criminal Provisions (Article 90 - 95) Chapter 15 : Transitional Provisions (Article 96 - 99) Chapter 16 : Closing Provisions (Article 100, 101) • Does the ID-NIC require domain name registrants to provide evidence of ownership of

the trade mark, service mark or copyright? No, it does not. However, IDNIC requires domain name registrants to provide: 1. Documents concerning “registrants’ identity”, such as: ID card, Company/Organization

Deed of Establishment, Business License, Tax Registration Number, Company Registration, and/or other identities valid within the jurisdiction of the Republic of Indonesia (Regulation on Domain Name Registration (RDNR) Part A No. 2.b, 2.c); and

2. Explanation or clarification regarding the relationship between the name of registrant (individual, company, organization, or institution) and the domain name to be

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registered (RDNR, Part B No. 6.d). In giving such explanation or clarification as stated in point 2 above, if the explanation or clarification relates to a name of the mark (trade-mark and or service-mark) or other copyrights, IDNIC will ask for supported documents, either the Mark Certificate or other Copyright Certificates. Or for registrants who have just received a receipt date of the application for an intellectual property right, this document is also acceptable under a special condition, i.e. if the application for that intellectual property right, is denied and or dispute arises with another party concerning the domain name, IDNIC will freeze the domain name until the dispute is settled, as stated in the provision of RDNR Part A No. 4.e. In addition, as a preventative measure, IDNIC also obligates registrant to mention his “NS Record” data (both Hostname and Netaddress of Primary and Secondary Name Server) as reference for IDNIC to crosscheck the registrant’s identity to the Internet Service Provider. RDNR under .ID generally comprises of 2 parts, i.e.: Part A on Registration Provisions, containing General Provisions (for examples: the registration is based on the principle of “first come, first served”, the registrant should be able to communicate in Indonesian language, etc.), Special Provisions (for each types of the second level domain), Naming Provision, Dispute, Activation Time, Funding, Complaint, Registration Form, Latest Information on IDNIC, and other Provisions, and Part B on General Explanation concerning the procedure of obtaining, filling in and sending back the registration form. • Does the ID-NIC provide a policy and/or service concerning domain name dispute

resolution? Yes, it does. Policies and or services concerning domain name dispute settlement are explicitly stated in RDNR, as follows: 1. IDNIC holds no responsibility and plays no part other than keep a record on the

delegating of the domain name requested, as stated in The Domain Naming Convention for Internet User Application (RFC819) (RDNR No.3.a);

2. Should a dispute arises, the use of domain will be halted until the problem is resolved (RDNR No. 4.e);

3. In case of dispute, IDNIC is fully authorized to take necessary measures, such as to revoke, to freeze, or to take other measures toward the delegated domain. Besides that, based on our interview, it is implicitly stated that IDNIC will act as a mediator in settling the domain name dispute peacefully (through compromise) upon request from parties in dispute.

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Comment: Each type of the second level domain has its own RDNR, and the answer here uses RDNR under .WEB.ID as an example. • The dispute on domain name between PT Martina Berto and PT Mustika Ratu. First of all, it is assumed that the information provided by the Jakarta Post is correct. (Comment: this assumption is very important, because quite a lot of newspapers circulated in Indonesia do not report the truth with an intention to form a public opinion for the interest of one of the parties in dispute) Our conclusions concerning criminal case on the domain name of MustikaRatu.com are as follows: 1. Indonesian Criminal Code can be applied to this case since the defendant is an

Indonesian citizen, and his act is a crime according to the criminal provisions in Indonesian Law and thus, he may be punished according to the Law of USA (Article 5-(1.2e) of the Criminal Code),

2. However, if the charge is “fraudulent competition” (Article 382bis of the Criminal Code and Article 48 of the Antimonopoly Law No.5 of 1999 (because of a violation of the Article 19), the defendant is very likely to walk free.

3. The decision to set the defendant free in this case is not due to the inadequacy of the prevailing legal apparatus (law and regulations), but it is more as a result of the poor quality of the charge (the application of the existing regulations), which is constructed by the prosecutor handling the case.

The conclusions above are made based on the following analysis: (i) Jurisdictional Issues

In this section on jurisdictional review, we focus on the application of the Criminal Code for any person, either Indonesian or foreign citizen, who conducts a criminal act in Indonesia (‘locus delicti’ principle), as regulated in Article 2 of the Criminal Code. The scope of “in Indonesia” here is not only limited to the location in which the criminal act takes place or the location of the tool used to carry out the act, but also covers the location of the consequence of the act. Therefore, even though the location in which the criminal act takes place and the location of the tool used to carry out the act, is outside Indonesia, the person responsible for the criminal act can still be indicted based on the Indonesian Criminal Code, if the consequence of the act takes

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place in the Indonesian jurisdiction. Besides, the Criminal Code also regulates the application of criminal provisions in Indonesian Law for any person including foreign citizens who conduct a criminal act outside Indonesian jurisdiction, i.e.: Article 3 on crime onboard Indonesian ship or air carrier and Article 4 on crime against Indonesian national security. Meanwhile, the application of criminal provisions in Indonesian Law for only Indonesian citizen conducting a criminal act outside Indonesia is regulated in Article 4 (for all Indonesian citizens), Article 5 (for Indonesian civil servant) and Article 6 (for cabin crew and passenger of Indonesian ship or air carrier). In the case of MustikaRatu.com, it seems difficult to apply Article 2 on the principle of “locus delicti”, since the criminal act was conducted in USA, and the tool used was also in USA, while it is difficult to prove that the consequence of the act has affected the consumers of Mustika Ratu products within the Indonesian jurisdiction. However, Article 5-(1.2e) of the Criminal Code is applicable. This article stated that criminal provisions in Indonesian Law applies to Indonesian citizen who conducts, outside Indonesia, an act regarded as a crime according to the criminal provisions in Indonesian Law and may be punished according to the Law of the country in which the act is conducted. Since the person responsible for this case is an Indonesian citizen, and his act of registering the domain name MustikaRatu.com is a crime (mark forgery and fraud) for which the person responsible may be punished according to the prevailing laws in USA (for example, the case on the domain name of McDonalds.com). From the explanation above, it can be inferred that Indonesian jurisdiction is applied on the criminal case of Mr. Tjandra Sugiono.

(ii) Unfair Business Competition an or Fraudulent Competition If the charge is unfair business competition (Article 19 of the Law No. 5 of 1999 on Antimonopoly and Unfair Business Competition) and or fraudulent competition (Article 382bis of the Criminal Code), the defendant should be the President Director and or the Board of Directors of PT. Martina Berto, not Mr. Tjandra Sugiono. Because: �� The defendant’s presence (Mr. Tjandra Sugiono) in USA (when he registered the

domain name of MustikaRatu.com) was in his capacity as the General Manager of PT. Martina Berto, or in other words, the defendant conducted the criminal act not in his capacity as a private individual but as the representative of PT. Martina Berto in USA. Therefore, the person responsible for the act of Mr. Tjandra Sugiono as the representative of PT. Martina Berto is the President Director and or the Board of Directors of PT. Martina Berto, as regulated in the Company Law

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No 1 of 1995. Besides, Mr. Tjandra Sugiono as a private individual is not a business actor as suggested in the Antimonopoly Law No. 5 of 1999.

�� Article 382bis of the Criminal Code can be applied to the defendant’s (Mr. Tjandra Sugiono) act. However, one of the conditions enabling the defendant to be punished is to prove that the defendant’s act was intended to make profit in trading for his own enterprise or others (in this case PT. Martina Berto). Does the defendant’s act benefit his own enterprise? The answer is no because the products traded through MustikaRatu.com is the products of PT. Martina Berto (through belia-online.com); or Does the defendant’s act benefit PT. Martina Berto? It seems so; however, it would be difficult for the prosecutor to prove it, since it can be ensured that PT. Martina Berto will not admit that the defendant’s act has benefited the company.

From the explanation above, it can be inferred that it would be hard for the prosecutor to prove that the defendant has conducted an unfair business competition and or fraudulent competition, so that the judge is very likely to sentence the defendant free.

(iii) Mustika Ratu is a Registered Mark Mustika Ratu is a Registered Mark and is also a well-known trademark for cosmetic products in Indonesia. Therefore, the charge in this case should be a crime against a mark right, in which the punishment is regulated in Article 81, 82, or 84 of the Mark Law No. 19 of 1992 as revised through Law No.14 of 1997 (or its relevance, i.e.: Article 90, 91 or 94 of the new Law on Mark (Law No. 15 of 2001) which was promulgated on and has come into effect since August 1, 2001), and Article 378 of the Criminal Code on Fraud. Free translation of criminal provisions (Article 90, 91 and 94 of Law No. 15 of 2001) are as follows: Article 90: Whoever intentionally and unrightfully uses a mark totally the same

as a registered mark belonging to the other party for goods and/or services of the same kind which are produced and/or traded is sentenced to imprisonment of 5 (five) years at the maximum and/or a fine of Rp. 1.000.000.000 (one billion rupiah) at the maximum.

Article 91: Whoever Intentionally and unrightfully uses a mark principally the same as a registered mark belonging to the other party for goods and/or services of the same kind which are produced and/or traded is sentenced to imprisonment of 4 (five) years at the maximum and/or a fine of Rp. 800.000.000 (eight hundred million) at the

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maximum. Article 92: Regarding the criminal provision on the violation of a geographical

indication. Article 93: Regarding the criminal provision on the violation of an indication of

origin. Article 94: Whoever trading goods and/or services ascertained or noteworthy to

ascertain that the said goods and/or services result from the violations as meant in Articles 90, 91 and 93 is sentenced to imprisonment of one year at the maximum and /or a fine of Rp 200.000.000 (two hundred million) at the maximum.

Debate will arise in the application of these articles, since the punishment is given for crimes against a registered mark for similar goods and/or services. The defendant will claim that Mustika Ratu is a registered mark for cosmetic products, while MustikaRatu.com is a domain name for a trading service (unless Mustika Ratu is also a registered mark for a trading service). However, although criminal sanction for violation on a well-known mark right for non-similar goods and or services is not explicitly stated in the prevailing law on Mark, special protection for this case is stated in Article 6-(4) of the Old Law on Mark (Law No. 19 of 1992 and No. 14 of 1997) or Article 6-(2) of the New Law on Mark (Law No. 15 of 2001), which also implicitly suggests a sanction for violation. Therefore, in our opinion, by utilizing the argument on legal protection for a well-known mark right for similar and non-similar goods and or services in this case, the possibility for the defendant to be sentenced for a crime or violation against intellectual property rights (Mark Rights), will be much bigger than applying the stipulations on unfair business competition. In addition, we consider it more appropriate to apply Article 378 of the Criminal Code on fraud to this case than Article 382bis on fraudulent competition. Article 378 stated that any person with an intention to benefit himself or others by acting against the law, either using false names or circumstances, or by deception misleading people to “give any goods” (can be interpreted as giving money to purchase goods), is convicted for fraud with a maximum of 4-year term. In this case, the defendant has clearly used “false circumstance” (MustikaRatu.com), by misleading people intended to purchase the cosmetic products of Mustika Ratu through MustikaRatu.com. Therefore, the defendant is far more likely to be convicted according to Article 378 than Article 382bis.

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6.5 Electronic Authentication Business 6.5.1 Legal Framework Hitherto, Indonesia has not had a comprehensive law on electronic authentication and electronic signature. Comment: The Indonesian government is planning to come into force a Comprehensive Law on Cyber and Electronic Signature by the Year of 2002. An outline of the final draft of Cyber Law which is planning to be proposed by the government (in this case, the Directorate General for Post and Telecommunications of the Ministry of Transportations) to the parliament in the early of 2002, is as follows: Chapter 1 : General Provisions (Article 1) Chapter 2 : Principles and Purposes (Article 2,3) Chapter 3 : Fostering the Cyber Technology and Its Institution (Article 4,5) Chapter 4 : Electronic Commerce (Article 6-10) Chapter 5 : Domain Name and Protection of Intellectual Property Rights (Article 11-17) Chapter 6 : Protection of Privacy Rights (Article 18-20) Chapter 7 : Dispute Settlements (Article 21-24) Chapter 8 : Jurisdiction and the Competent Court (Article 25-26) Chapter 9 : Taxation (Article 27) Chapter 10 : Investigation (Article 58) Chapter 13 : Criminal Provisions (Article 29-40) Chapter 14 : Transitional Provision (Article 41) Chapter 15 : Closing Provision (Article 42) Comment: An interesting point in this draft is articles regarding the jurisdiction, the competent court and the domain name. According to this draft, the jurisdiction of the Republic of Indonesia shall be applied if the consequence of a legal act takes place in the Indonesian jurisdiction (Article 25), and the Indonesian courts have a competency for any cases against this law conducted by any individual (including the foreigner) or statutory body (including the foreign statutory body) either in Indonesia or outside Indonesia (Article 26). A domain name to be registered may not violate a registered mark, a geographical indication, or an

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indication of origin, as regulated in the prevailing laws (Article 12). 6.5.2 Body which grants a license, accreditation or registration of CAs based

on the law (It is being considered.) 6.5.3 System of designated CAs based on the law (It is being considered.) 6.5.4 System of International (Overseas) designated CAs based on the law (It is being considered.) 6.5.5 Designated CA(s) based on the law None. 6.5.6 Technical Requirement (It is being considered.)